Estates and Trusts Commons^™

Rediscovering The Resulting Trust: Modern Maneuvers For A Dated Doctrine?, Malcolm L. Morris

Akron Law Review

Usually thought of as only a remedial measure, the resulting trust may now be ready to take on an expanded role. Although not considered devolutionary vehicles per se, resulting trusts can direct the passage of title, and are therefore potentially useful estate planning tools. To serve in this capacity, the applicable principles used to raise resulting trusts must be introduced at the time of the transaction and not resorted to as an afterthought at some later date. Using resulting trusts in such a manner is arguably inconsistent with the theory supporting their existence. This article suggests, however, that the courts …

United States Trust Co. V. I.R.S., Scott D. Brackett

Akron Law Review

During the course of its administration, an estate may receive income that is subject to federal income tax. When, and if, an estate receives such income the executor is faced with the task of filing the estate's income tax return along with a number of related considerations. One of the more important considerations is the allocation of the burden of such tax between the beneficiaries of the estate and the estate itself.

Subchapter J of the Internal Revenue Code provides the mechanism to allocate that burden between the beneficiaries and the estate. Generally, Subchapter J attempts to allocate the tax …

The Ohio Designated Heir Statute, Albert H. Leyerle

Akron Law Review

This article will discuss the procedure for the designation of an heir, its vacation or revocation, and the effect of such a designation. The status of the designated heir, examples of unanswered questions and gray areas, and the practical significance of the statute will be included in this discussion. The conclusion will further illustrate just how powerful and practically significant a designation can be.

Justice Before Generosity: Creditors' Claim To Assets Of A Revocable Trust After The Death Of The Settlor, Lauren Ashley Gribble

Akron Law Review

The Ohio legislature recently passed the Ohio Trust Code, which primarily codified existing trust law. In keeping with the operation of revocable trusts and the principle that settlors should not be able to use such trusts to avoid creditors, it provides that creditors may claim the assets of a revocable trust during the lifetime of the settlor. It is, however, silent as to creditors’ ability to access trust funds after the settlor’s death. Two Ohio appellate courts have discussed the statute, only to arrive at different conclusions regarding its operation and significance in light of case precedent. This Article will …

A Time To Live, A Time To Die, Linda Shields-Stiefel

Akron Law Review

The purpose of this Comment is to review S.B. 1 and to compare it to other states living will statutes and to the proposed Uniform Rights of Terminally Ill Act.

Part I briefly overviews the American history of living wills. Part II reviews living will/right to die statutes in effect and major court decisions. Part III discusses Ohio's position on the right to die, both statutory and judicial. Part IV reviews S.B. 1 and suggests several changes. The conclusion recommends that a uniform living will statute be enacted to guarantee equal treatment for patients in all jurisdictions.

The Trust Throwback Rules: The Solution Remains After The Problem Fades, John R. Cunningham

Akron Law Review

This article will briefly review the history of the throwback rules and will then show that the small savings still available through trust accumulations that would result without the operation of the throwback rules do not justify the continuance of these complicated throwback rules. In fact, the tax savings through trust accumulations without the throwback rules can be matched even within the operation of the throwback rules. Finally, this article will show that through a small rate change that may be forthcoming for other reasons, the potential savings through the accumulation of income in trusts may be reduced to such …

Advance Directive Accessibility: Unlocking The Toolbox Containing Our End-Of-Life Decisions, Vanessa Cavallaro

Touro Law Review

No abstract provided.

Intestacy Concerns For Same-Sex Couples: How Variations In State Law And Policy Affect Testamentary Wishes, Megan Moser

Seattle University Law Review

As the number of same-sex couples increases in the United States, concerns regarding the evolution of federal and state law, with respect to rights for same-sex couples, also continue to rise. As marriage is not always available to same-sex couples, they often face very different legal issues than couples in a traditional marriage. Because marriage is typically not a legal cause of action, the question of a marriage’s validity often arises incidentally to another legal question, such as the disposition of a decedent’s estate.

The Domestic Asset Protection Trust And Its Federalism Implications, Alexander B. Shiffman

Cardozo Public Law, Policy & Ethics Journal

No abstract provided.

Exposing The Hocus Pocus Of Trusts, Kent D. Schenkel

Akron Law Review

Part II makes the conceptual case for viewing the trust as an elective cost-externalization device. Part III offers the spendthrift trust as the archetypal model for purposes of our analysis, briefly describes the spendthrift trust, and explores its consequences to outsiders to the trust deal. Part IV offers some reasons why the elective externalities of trusts persist. Part V first examines and rejects a couple of approaches to minimizing the externalized costs of trusts that rely on the “bundle of sticks” approach to property interests. It then moves beyond the bundle of sticks approach, settling on a solution based on …

A Trustee’S Fiduciary Duties At The Start And End Of Administration, Robert Whitman

Catholic University Law Review

Prior to the creation of a trust and at its termination, a trustee’s fiduciary duties are often ambiguous. It is argued that, where fiduciary duties do not exist, contract law may be found to govern the rights of the settlor, the trustee, and the beneficiaries. This article refutes this argument because under the principles of modern contract law, certain conduct may be permitted that would not be acceptable if fiduciary duties existed more clearly. The most common problems arise in three areas: (1) the seeking of a receipt and release by a corporate fiduciary upon an informal termination of a …

How The Über-Wealthy Benefit From Investing Outside Retirement Plans (And How You Can Too), Sergio Pareja

Catholic University Law Review

Current law incentivizes the use of traditional retirement plans, but those plans may not actually produce the best long-term tax situation for the taxpayer. The stepped-up basis at death does not apply to what is known as “income in respect of a decedent” (IRD). Generally, IRD is income that cannot be assigned from one person to another for income tax purposes. This includes pre-tax income set aside in a traditional employer-sponsored retirement plan, such as a 401(k) plan, as well as contributions to a deductible individual retirement account (IRA). Thus, stock held within a traditional employer-sponsored retirement plan or a …

Not Your Mother's Will: Gender, Language, And Wills, Karen J. Sneddon

Marquette Law Review

“Boys will be boys, but girls must be young ladies” is an echoing patriarchal refrain from the past. Formal equality has not produced equality in all areas, as demonstrated by the continuing wage gap. Gender bias lingers and can be identified in language. This Article focuses on Wills, one of the oldest forms of legal documents, to explore the intersection of gender and language. With conceptual antecedents in pre-history, written Wills found in Ancient Egyptian tombs embody the core characteristics of modern Wills. The past endows the drafting and implementation of Wills with a wealth of traditions and experiences. The …

When An Ex Can Take It All: The Effect—And Non-Effect—Of Revocation On A Will Post-Divorce, Molly Brimmer

Maryland Law Review

No abstract provided.

Heir Property In The African American Community: From Promised Lands To Problem Lands, Roy W. Copeland

Professional Agricultural Workers Journal

Abstract

African American landowners have been reluctant to take advantage of intergenerational succession laws which provide for an orderly transfer of property from one generation to the next. This reluctance has led to a prevalence of heir property. Heir property is created when a person dies intestate. Heir property has created an impediment to wealth accumulation and has contributed to African American land loss in America. Partition actions are a byproduct of heir property which has operated to accelerate the loss of real property in the African American community. The Uniform Partition of Heir Property Act provides for procedural safeguards …

Newsroom: Pbc: Safe Passage Through Guardianship, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

An Ounce Of Planning Is Worth A Pound Of Litigation Prevention, Phyllis C. Taite

Other Faculty Publications

No abstract provided.

How The Ali's Restatement Third Of Property Is Influencing The Law Of Trusts And Estates, Lawrence W. Waggoner

Articles

Restatements, once limited to restating existing law, are now substantially devoted to law reform. The ALI's website states its law-reform policy thus: "The American Law Institute is the leading independent organization in the United States producing scholarly work to clarify, modernize, and otherwise improve the law." In 2014, the Brooklyn Law Review published a symposium issue on Restatements of the Law. A paper in that symposium argued against the ALI's law-reform policy. The authors specifically speculated that the reformist rather than restatist character of the recently completed Restatement (Third) of Property: Wills and Other Donative Transfers (Property Restatement) has "very …

Tax Planning: Foreign Investment In United States Real Property, William H. Newton Iii

Georgia Journal of International & Comparative Law

No abstract provided.

Whose Fault Is It Anyway?: Analyzing The Role “Fault” Plays In The Division Of Premarital Property If Marriage Does Not Ensue, Arielle L. Murphy

Catholic University Law Review

Whenever an engagement comes to a premature end, the first question that seems to be asked is: “who gets the engagement ring?” This Comment seeks to answer this question. As societal views regarding marriage and a woman’s role within it began to change in the mid-twentieth century, courts started to recognize engagement rings as conditional gifts that were conditioned upon the marriage actually occurring. Even with this framework, states remain divided on whether fault should be included as part of the analysis in determining which party is entitled to the ring if an engagement ends before marriage occurs. This Comment …

The Implications Of Exclusion: How Pregnancy Exclusions Deny Women Constitutional Rights, Hannah Schwager

Cardozo Public Law, Policy & Ethics Journal

No abstract provided.

Summary Of In Re Estate Of Murray, 131 Nev. Adv. Op. 8, Godinho M. Vincent

Nevada Supreme Court Summaries

The Court determined NRS Chapter 126 (the Nevada Parentage Act) and not NRS Chapter 123 (Nevada’s probate laws) controls for parentage determinations of potential heirs, including determinations sought for probate matters.

East Asian Trusts At The Crossroads, Ying Chieh Wu

Research Collection Yong Pung How School Of Law

The purpose of this article is to scrutinize the legal structure of trusts in Japan, SouthKorea and Taiwan. The so-called infrastructure of the private law of these jurisdictions is rooted in theRoman-Germanic basis, which adopts dichotomous system in respect of that area of privatelaw dealing with property: the law of property and that of obligation. However,the adoption of the trust has caused some problems. Though controversial, thecontract-based view seems to be the majority view in the East Asian civiljurisdictions, yet the property-based view dominates the commonlaw world. However, being influenced by common law, the property-approach isalso asserted by some commentators …

How The Über-Wealthy Benefit From Investing Outside Retirement Plans (And How You Can Too), Sergio Pareja

Faculty Scholarship

Current law incentivizes the use of traditional retirement plans, but those plans may not actually produce the best long-term tax situation for the taxpayer. The stepped-up basis at death does not apply to what is known as “income in respect of a decedent” (IRD). Generally, IRD is income that cannot be assigned from one person to another for income tax purposes. This includes pre-tax income set aside in a traditional employer-sponsored retirement plan, such as a 401(k) plan, as well as contributions to a deductible individual retirement account (IRA). Thus, stock held within a traditional employer-sponsored retirement plan or a …

Creation, Administration, And Effectiveness Of The "Failsafe" Trust For Nonresident Aliens, Andrew H. Prussack

Georgia Journal of International & Comparative Law

No abstract provided.

Dispatches From The Trenches Of America's Great Gun Trust Wars, Lee-Ford Tritt

Northwestern University Law Review

No abstract provided.

Offshore Trustees Beware: No Pre-Levy Notice For You!, Phyllis C. Taite

Other Faculty Publications

No abstract provided.

Not Your Mother's Will: Gender, Language, And Wills, Karen J. Sneddon

Articles

“Boys will be boys, but girls must be young ladies” is an echoing patriarchal refrain from the past. Formal equality has not produced equality in all areas, as demonstrated by the continuing wage gap. Gender bias lingers and can be identified in language. This Article focuses on Wills, one of the oldest forms of legal documents, to explore the intersection of gender and language. With conceptual antecedents in pre-history, written Wills found in Ancient Egyptian tombs embody the core characteristics of modern Wills. The past endows the drafting and implementation of Wills with a wealth of traditions and experiences. The …

Medicaid Planning For Long-Term Care: California Style, John A. Miller

Articles

No abstract provided.

The Intersection Of Agency Doctrine And Elder Law: Attorney-In-Fact Authority To Arbitrate Nursing Home Claims, 49 J. Marshall L. Rev. 39 (2015), Thomas Simmons

UIC Law Review

With the popularity of durable powers of attorney to manage the estates and personal affairs of individuals with diminished capacity, construction of the scope of powers with which agents are acting is of increasing importance. Some acts should be seen as so inherently personal or so dramatically inconsistent with the expected role of an agent as to be simply outside the scope of agency altogether. Others, such as those involving gifts, self-dealing transactions, or constitutional rights, should be never implied but honored when located within the express terms of an agent’s authority. The remaining powers should be construed and mapped …